As many military servicemembers would tell you, "Explosively Formed Penetrators" ("EFP") were among the most lethal technologies deployed by our enemies during Operation Iraqi Freedom.  EFP's are a type of Improvised Explosive Device consisting of a concave-shaped copper bowl, sitting on top of a metal tube that is packed with explosives. Iraqi insurgent forces—operating with the support and assistance of the Islamic Republic of Iran—would disguise these EFP devices and place them alongside a well-traveled road. Insurgents would then remotely detonate the explosive device at a passing military convoy. Immediately upon explosion, the concave copper plate would deform into bullet-like projectile that would pierce through multiple layers of armor like a warm knife through butter. The results were devastating.

The influence of Iran in developing and deploying the EFP technology has given rise to hundreds of lawsuits filed in U.S. Federal Courts, whereby injured service-members are seeking recovery against Iran for their wartime injuries. To recover, the injured servicemembers rely on 28 U.S.C. § 1605A, which states:

A foreign state shall not be immune … [from a lawsuit] in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act … is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The U.S. servicemembers bringing these lawsuits point to numerous organizations such as Kata'ib Hezbollah or the Mhadi Militia—both which were organizations that actively conducted attacks in Iraq, and both which are controlled and/or supported by Iran.

Iran refuses to recognize the legitimacy of U.S. law, therefore most of these personal injury and wrongful death lawsuits are disposed of through default judgments. As one might expect, collection efforts have proven near impossible. Nevertheless, the servicemembers can recover monetary damages from the "United States Victims of State Sponsored Terrorism Fund" (34 U.S.C. § 20144), which is a multi-billion-dollar fund comprised of monies from fines, sanctions, and penalties against entities who may have violated sanctions against Iran.

Against this backdrop and precedence, an interesting legal question arises: what individual recourse would military servicemembers have if the United States initiates military action directly against the Islamic Republic of Iran?  Recent events—including Iran's attack on a $220 million U.S. drone—have pushed these two countries to the brink of war. The Commander-in-Chief has even stated that he was "cocked and loaded" to strike Iran as noted in the New York Times, and that America's response "will soon be increased, substantially" as quoted in the Wall Street Journal. Could an infantryman prevail on a lawsuit for battlefield injuries sustained during a ground invasion?

The answer likely hinges on the interpretation of the term "extrajudicial killing" which, as used in 28 U.S.C. § 1605A, is defined as "a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." This term, however, "does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation." See 28 U.S.C. § 1350.

Numerous international bodies and laws have recognized the right of a nation to exercise self-defense. This principle was recognized by the International Court of Justice in the 1986 case of The Republic of Nicaragua v. The United States of America; by Chapter VII Art. 51 of the United Nations Charter ("Nothing in the present charter shall impair the inherent right of collective or individual self-defense if an armed attack occurs against a member of the United Nations…"); and implicitly by the Genevia Conventions, to which both countries are signatories. Accordingly, unlike the Iran's coordinated and financed killings in Iraq—which were extrajudicial—injuries or death that would occur during an invasion of Iran would not likely meet the requirements of 28 U.S.C. § 1605A because of the permissibility of self defense under international law. In other words, the exclusion aspect of the term "extrajudicial killing" would have been met, thus leaving a servicemembers only personal recourse to occur in the event of torture, aircraft sabotage, or hostage taking.

Such a conclusion, however, should be colored by the assumption that the hostilities between the U.S. and Iran involve uniformed, lawful combatants of each country. A different outcome is possible, even likely, if the same unlawful terrorist groups that have been operating in Iraq now become involved in an Iranian fight. Such terrorist organizations, operating by use of similar RFP-related tactics and not subject to a command structure controlled by a central state power, would more precisely reflect the terrorist organizations cited and ruled on in the Iraq litigation.  The predominant question remains: at what point do the hostilities cease to reflect customary warfare under international law, and instead become "extrajudicial killings?"

Regardless of the answer, the massive EFP-related litigation resulting from Operation Iraqi Freedom was has fundamentally changed face of warfare to a fight that is first conducted on the battlefield, and later in the courtroom.

Andrew Cobos is a two-time combat veteran of Operation Iraqi Freedom. Andrew is also the founder of the Cobos Law Firm, a Houston-based firm specializing in personal injury law. For more information, visit www.cobos.law.